People v. Lusby CA1/3

Filed 11/12/25 P. v. Lusby CA1/3
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,
           Plaintiff and Respondent,                                     A170250
 v.
 RAMON RAY LUSBY,                                                        (Napa County
                                                                         Super. Ct. No. 23CR002574)
           Defendant and Appellant.


         A jury convicted Ramon Ray Lusby of evading an officer with willful
disregard for the safety of persons and property and reckless driving. After
denying his motion to strike his prior strike conviction pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court
sentenced him to four years in prison. On appeal, he argues the court
prejudicially erred by admitting evidence of prior misconduct and by denying
his motion to strike. We affirm.
                                                  BACKGROUND
         On August 15, 2023, an officer in a marked police vehicle in Napa
County noticed a black Infinity sport utility vehicle (SUV) traveling in the
middle of the day without a front license plate. The driver, a heavyset, light-
skinned Black male with “poofy hair,” was later identified as Lusby. A tinted
license plate cover obscured the rear license plate — a violation of the Vehicle
Code. The officer attempted to conduct a traffic stop, but Lusby sped through
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a red light at the intersection. The officer activated emergency lights and
sirens in pursuit. Lusby sped away. Though the officer was driving
approximately 90 to 110 miles per hour — the speed limit on the road was 45
miles per hour — the distance between Lusby and the officer grew, indicating
he was driving much faster than the officer. He weaved in and out of traffic,
making unsafe lane changes. After two minutes, the officer stopped the
pursuit due to its speed and bystander traffic. The officer’s dash camera
recorded the pursuit and, using a database, the officer located the SUV’s
license plate. A records check revealed the SUV was “wanted for some type of
felony.”
      Two days later, another officer saw the same SUV entering a freeway.
It drove through Vallejo and into Berkeley. The officer alerted dispatch and
followed it, which was being driven by a Black male wearing a white T-shirt.
The driver — later identified as Lusby — stopped at a liquor store in
Oakland, at which point officers approached him and ordered him to get on
the ground. Even though officers had their weapons drawn, Lusby
immediately turned and fled. Officers eventually apprehended him and
seized the vehicle. They sent a photograph to the sheriff’s office in Napa
because they were aware of its investigation of an incident related to the
same vehicle. They received confirmation that Lusby was the same person
involved in the August 15 incident.
      Lusby was charged with evading a peace officer with willful disregard
for the safety of persons and property and reckless driving. (Veh. Code,
§§ 2800.2, subd. (a), 23103, subd. (a).) The information alleged he had a 2023
prior strike conviction for robbery (Pen. Code, §§ 667, subd. (b)–(i), 211;
undesignated statutory references are to this code); it also alleged several
aggravating factors — that Lusby acted with great violence, cruelty,


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viciousness, or callousness; violent conduct; increasing seriousness of priors;
committed when on probation or parole; and that his prior performance on
probation or parole was unsatisfactory (Cal. Rules of Court, rule 4.421(a)(1),
(b)(1)–(2), (4)–(5)).
      Before trial, the prosecution moved to admit evidence that Lusby was
arrested in March 2020 for fleeing California Highway Patrol (CHP) officers.
In that instance, he was driving up to 100 miles per hour on the highway
without headlights at 2:00 a.m. Although the officers immediately activated
their emergency lights and pursued the vehicle, they were unable to overtake
it. During the pursuit, he passed several other CHP vehicles, made unsafe
lane changes and, on three occasions, swerved at other vehicles to
intentionally cause traffic collisions. Officers forced him to stop after using a
spike strip to deflate his tires. Lusby exited the vehicle and attempted to
flee, but officers eventually apprehended him.
      The trial court ruled this evidence was admissible to demonstrate
Lusby’s intent for the charged offense — that he intended to evade officers. It
further determined that the probative value outweighed the prejudicial effect,
and it concluded an instruction that the evidence could not be used to
demonstrate propensity would mitigate any prejudicial effect. Indeed, at the
close of evidence, the court instructed the jury with CALCRIM No. 375,
explaining that Lusby’s prior uncharged misconduct could be considered for
the limited purpose of deciding whether he acted with the intent to evade the
officer in this case, he was aware his actions presented a substantial
justifiable risk of harm, he intentionally ignored that risk, or his actions were
not the result of mistake or accident.
      The jury found Lusby guilty of both counts. In a bifurcated proceeding,
the trial court found true his prior strike conviction and the aggravating


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circumstances. The court denied his motion to dismiss the prior strike
pursuant to Romero and sentenced him to four years in prison.
                                 DISCUSSION
      First, Lusby argues the trial court violated Evidence Code sections
1101 and 352 by admitting evidence of his prior misconduct of evading a
police officer in 2020. After reviewing this ruling for an abuse of discretion,
we disagree. (People v. Cordova (2015) 62 Cal.4th 104, 132 [abuse of
discretion standard of review for admission of evidence].)
      Propensity evidence — that is, evidence of a defendant’s bad acts used
to prove the defendant’s conduct on a specific occasion — is generally
inadmissible. (Evid. Code, § 1101.) But evidence of prior conduct is
admissible to prove some material fact other than a defendant’s disposition to
commit an act. (Id. subd. (b); People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 406.) This includes intent, knowledge, or absence of mistake.
(Evid. Code, § 1101, subd. (b); Bryant, Smith and Wheeler, at p. 406, fn. 27.)
To be admissible under Evidence Code section 1101, the evidence must also
satisfy the strictures of Evidence Code section 352 — its probative value must
not be substantially outweighed by undue prejudice. (Bryant, Smith and
Wheeler, at pp. 406–407.)
      Evidence of Lusby’s prior evasion was relevant to establishing his
intent with regard to the instant offense. Vehicle Code section 2800.2 —
prohibiting driving in a willful or wanton disregard for the safety of persons
or property — requires the prosecution to prove the defendant had the
specific intent to evade police officers. (Veh. Code, §§ 2800.2, subd. (a),
2800.1, subd. (a); People v. Taylor (2018) 19 Cal.App.5th 1195, 1203.) To
prove intent using uncharged misconduct, the prior conduct “must be
sufficiently similar to support the inference that the defendant ‘ “probably


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harbor[ed] the same intent in each instance.” ’ ” (People v. Ewoldt (1994)
7 Cal.4th 380, 402.)
       Sufficient similarity exists here. In both instances, Lusby engaged in
traffic violations before police pursued him — in 2020, he was exceeding the
speed limit on the highway without headlights, while in 2023, he was alleged
to be driving without a front license plate and with a tinted rear plate. He
also fled even though the officers activated their emergency lights and sirens.
In both instances, he exceeded the posted speed limit when fleeing despite
the existence of other cars on the road. Given the circumstances of the first
event, the prior misconduct established Lusby must have intended to elude
the officers in the charged offense. (People v. Chhoun (2021) 11 Cal.5th 1,
27.)
       Lusby highlights several differences between his 2020 conduct and his
charged offense — there was no evidence that in 2023 he attempted to evade
officers by ramming into their cars, and there were differences in the time of
day, vehicles, and location for each incident. Even accepting these
differences, the “least degree of similarity (between the uncharged act and
the charged offense) is required in order to prove intent.” (People v. Ewoldt,
supra, 7 Cal.4th at p. 402.) A recurrence of a similar action tends to negate
claims the defendant acted accidentally, inadvertently, or with other innocent
mental states when committing the charged offense. (Id. at pp. 402–403.)
The sufficient similarity exists here to demonstrate intent, so his prior
conduct was admissible under Evidence Code section 1101. At no time “did
the court instruct the jury that any evidence could be considered as character
evidence. Section 1101(a) was not violated.” (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 406, italics omitted.) And although Lusby
insists that his counsel’s willingness to stipulate to his prior conduct


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rendered admission unnecessary, a defendant “may not stipulate or admit his
way out of the full evidentiary force of the case as the Government chooses to
present it.” (Old Chief v. United States (1997) 519 U.S. 172, 186–187.)
      The probative value of this evidence was not substantially outweighed
by any unduly prejudicial effect. (People v. Culbert (2013) 218 Cal.App.4th
184, 192.) For instance, the prior conduct was no stronger or more
inflammatory than Lusby’s charged offense. (People v. Ewoldt, supra,
7 Cal.4th at p. 405.) In both instances, he presented a safety risk by greatly
exceeding the speed limit despite the existence of other cars and officers
attempting to stop him. It is unlikely “that the jury’s passions were inflamed
by the evidence of defendant’s uncharged offenses.” (Ibid.) That an officer
testified that the 2020 incident involved Lusby apparently veering towards
cars during the pursuit to intentionally cause an accident does not render
this evidence inflammatory in the extreme, as Lusby contends. His charged
offense presented similar safety issues — speeding at 100 miles per hour
away from officers on a city street with a posted limit of 45 miles per hour in
the middle of the day, weaving through numerous cars. Indeed, officers
halted their pursuit of Lusby due to the resulting safety issues.
      Moreover, the testimony regarding the 2020 incident “cannot, standing
alone, be viewed as protracted.” (People v. Harris (1998) 60 Cal.App.4th 727,
739.) It occupies 10 pages of transcript, and even when combined with the
instructions, admonitions, and closing arguments, the “trial court could find
this factor weighed in favor of admission.” (Ibid.) Finally, providing the jury
with CALCRIM No. 375 — which explained that the uncharged misconduct
evidence could only be considered for the limited purpose of deciding whether
Lusby acted with intent to evade the officer, knew that the person he evaded
was an officer, was aware his actions presented a risk of harm, that he


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ignored that risk, or that his actions were not the result of mistake or
accident — reduced the potential prejudice from the evidence. (People v.
Ortiz (2003) 109 Cal.App.4th 104, 118.) We presume the jury followed this
instruction. (People v. Ervine (2009) 47 Cal.4th 745, 776.)
      Nothing in People v. Hendrix (2013) 214 Cal.App.4th 216 alters our
conclusion. In that case, the defendant’s two prior bad acts of violently
resisting arrest by officers were admitted to demonstrate the defendant had
the requisite knowledge to be guilty of knowingly resisting an officer — that
he knew of police-related activities, such as arresting noncompliant
individuals. (Id. at pp. 220, 242–243.) The appellate court reversed after
determining these acts had little probative value because they were
“dissimilar in a material way,” lacked any relevancy to the charged offense,
and only established common knowledge that police engage in activities such
as arresting noncompliant individuals. (Id. at pp. 239, 244–245.) Thus, the
court noted that “in the context of this case, the [CALCRIM No. 375]
instruction” — that the jury should consider the similarity or lack of
similarity between the uncharged offenses and the charged offense when
considering whether the defendant had knowledge of his actions, or whether
his actions were the result of a mistake or accident — “was confusing.” (Id. at
pp. 247–248, italics added.) Here, by contrast, the similarities between
Lusby’s prior act and his charged offense have significant probative value in
establishing his intent.
      In sum, there was nothing arbitrary, capricious, or patently absurd
about the trial court’s admission of the evidence. (People v. Rodrigues (1994)
8 Cal.4th 1060, 1124–1125.) Thus, its ruling did not violate Lusby’s due
process rights. (People v. Brown (2003) 31 Cal.4th 518, 545 [“routine




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application of state evidentiary law does not implicate defendant’s
constitutional rights”].)
      We also reject Lusby’s argument that his counsel was ineffective for
any omissions related to the admission of the prior misconduct or for failing
to request a modification to CALCRIM No. 375. Prevailing on that claim
requires demonstrating that counsel’s representation fell below an objective
standard of reasonableness and that there’s a reasonable probability the
outcome would have been different absent the error. (Strickland v.
Washington (1984) 466 U.S. 668, 686–688, 694.) According to Lusby,
admitting this evidence diverted the jury’s attention from the insufficient
evidence regarding the identity of the SUV driver during the August 15
incident — he argued the officer could not possibly identify Lusby through
heavily tinted windows from a distance while driving at high speeds. Thus,
Lusby posits, the jury convicted him simply based on the prior misconduct
evidence.
      Lusby fails to persuade us that there is any reasonable probability of a
more favorable outcome absent any alleged omissions. The officer testified
the SUV initially turned toward the police car, and the officer could see
through the windshield. The driver turned his head toward the officer and
made eye contact, and the officer specifically noted the driver’s “poofy hair.”
When sent a photograph of Lusby after he was apprehended, the officer
testified he was 100 percent sure Lusby was the same driver during the
August 15 incident. Indeed, Lusby was driving the same SUV that was
involved in the August 15 chase. Moreover, Lusby’s conclusory assertions
that the CALCRIM No. 375 instruction was prejudicial and the prior
misconduct was so inflammatory as to prevent a fair trial in violation of due
process rights does not satisfy his burden of demonstrating prejudice. (People


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v. Williams (1988) 44 Cal.3d 883, 937 [defendant “must carry his burden of
proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the
effect of the errors or omissions of counsel”].) Because Lusby fails to
demonstrate prejudice flowing from counsel’s alleged failure, his ineffective
assistance claim fails. (In re Fields (1990) 51 Cal.3d 1063, 1079 [determining
whether counsel’s performance was deficient is unnecessary where defendant
fails to demonstrate sufficient prejudice].)
      Next, Lusby contends the trial court erroneously denied his Romero
motion because it failed to consider and give great weight to mitigating
circumstances recently added to section 1385, subdivision (c). We discern
no abuse of discretion in the court’s ruling. (People v. Carmony (2004)
33 Cal.4th 367, 373–374 [abuse of discretion standard of review for ruling on
Romero motion].)
      After a sentencing hearing, the trial court denied Lusby’s motion to
strike his prior robbery conviction for the reasons articulated by the
prosecutor — that dismissing the strike allegation would not be in
furtherance of justice. Lusby, the court explained, was not outside the scope
of the “Three Strikes” law based on his numerous criminal convictions and
the seriousness of the charged offense and his prior convictions. It
acknowledged Lusby’s relatively young age — nearly 24 years old at the time
of his arrest — but it did not consider that a sufficient reason to strike the
prior conviction. In addition, the court noted there were several aggravating
circumstances it previously found true that supported the aggravated term
for his evasion of an officer conviction. It nonetheless imposed the middle
term, doubled pursuant to the strike offense for his evasion conviction, and a
90-day term for his reckless driving conviction that was stayed — a total of
four years.


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      Under the Three Strikes law, the trial court must impose specific
sentencing requirements for defendants with prior strike convictions —
serious or violent felonies. (People v. Carmony, supra, 33 Cal.4th at p. 377;
People v. Sasser (2015) 61 Cal.4th 1, 11; § 667, subd. (b).) For a defendant
with one prior strike conviction, the prison term is doubled. (§§ 667, subd.
(e)(1), 1170.12, subd. (c)(1).)1 But the court has the discretion to dismiss a
prior strike conviction if it would be in the furtherance of justice. (§ 1385,
subd. (a); Romero, supra, 13 Cal.4th at pp. 529–530.) When doing so, it must
consider “whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may
be deemed outside the [Three Strikes] scheme’s spirit.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) The court must “explicitly articulate its
reasoning” if it departs “from a harsher sentence by granting the Romero
motion.” (People v. Salazar (2023) 15 Cal.5th 416, 428.)
      A trial court abuses “its discretion in failing to strike a prior felony
conviction allegation in limited circumstances,” such as unawareness of its
discretion to dismiss, or considering impermissible factors when declining to
dismiss. (People v. Carmony, supra, 33 Cal.4th at p. 378.) We discern no
such issues here. The record reflects the court’s awareness of its discretion to
strike the prior conviction. It expressly stated it considered the prosecution’s
sentencing brief, which discussed section 1385, subdivision (a), and it
acknowledged its discretion to strike the prior section 211 conviction. And
nothing indicates the court considered impermissible factors. Rather, the



      1 Prior juvenile adjudications constitute prior serious or violent felony

convictions under the Three Strikes law if certain criteria are satisfied.
(§ 667, subds. (d)(3)(A)–(D).)
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court concluded, based on Lusby’s conduct in the charged offense and his
record of prior convictions, that he was within the spirit of the Three Strikes
scheme. (People v. Williams, supra, 17 Cal.4th at p. 161.)
      Lusby argues that the trial court erroneously denied his motion to
strike without considering and affording great weight to the mitigating
circumstances in section 1385, subdivision (c). That provision was amended
to identify factors courts “must consider when deciding whether to strike
enhancements from a defendant’s sentence in the interest of justice.” (People
v. Sek (2022) 74 Cal.App.5th 657, 674.) Proof of one or more of the specified
factors “weighs greatly in favor of dismissing the enhancement, unless the
court finds that dismissal of the enhancement would endanger public safety.”
(§ 1385, subd. (c)(2).) Though Lusby acknowledges case law concluding these
amendments apply only to sentencing enhancements, not prior strike
convictions under the Three Strikes law, he insists those cases are wrongly
decided. (People v. Jefferson (1999) 21 Cal.4th 86, 101 [“enhancement” has a
technical meaning — “ ‘an additional term of imprisonment added to the base
term’ ”]; People v. Burke (2023) 89 Cal.App.5th 237, 243 [“Three Strikes law is
not an enhancement; it is an alternative sentencing scheme for the current
offense”]; People v. Olay (2023) 98 Cal.App.5th 60, 67 [“If the Legislature had
wanted section 1385, subdivision (c) to apply to prior strikes as well as to
enhancements as legally defined, it would have said so”].)
      Lusby’s failure to raise this argument at the sentencing hearing forfeits
it, and we decline to consider it.2 (People v. Saunders (1993) 5 Cal.4th 580,
589–590.) For the same reason, we also do not consider his argument that



      2 We also question, but do not decide whether the record supports this

argument. Lusby concedes “the court reportedly considered mitigating
evidence of [his] youthfulness at the time of the incident.”
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the trial court erroneously considered a prior juvenile strike conviction that
was decided by a judge, not a jury, due to the civil nature of a juvenile
proceeding — again, he makes this argument for the first time on appeal.
(People v. Jenkins (2000) 22 Cal.4th 900, 947.) In sum, no sentencing error
appears.
                                DISPOSITION
      The judgment is affirmed.




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                                    _________________________
                                    RODRÍGUEZ, J.


WE CONCUR:


_________________________
TUCHER, P. J.


_________________________
PETROU, J.




A170250; The People v. Lusby




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